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DUI charge brings third trial

A Pasco County deputy said he saw Susan Lemons' van swerve twice over the white line marking the outside edge of U.S. 19 early Jan. 26.

After stopping her, he smelled a strong odor of alcohol from the Hudson woman's vehicle and noticed she had bloodshot eyes, he said.

Lemons, who said she had had a "couple" of drinks in the hours before the stop, performed poorly in field sobriety tests, the deputy said.

Later, a Breathalyzer test recorded her blood-alcohol level at .11 percent. By law, a driver is presumed to be impaired at .08 percent. Lemons, 39, was arrested and charged with driving under the influence of alcohol.

Lemons, however, now holds a rare distinction in a county where more than 83 percent of those charged with DUI are convicted. Twice she has been tried by juries on the same DUI charge. But in June and again in September, juries deadlocked 5-to-1 in favor of acquitting her, leading to mistrials.

Prosecutors plan to try Lemons again later this year.

Oddly, the tool usually employed by authorities to help win DUI convictions is the one thing that _ so far _ has helped Lemons avoid a jail term.

That tool is the videotape the officer made of the traffic stop.

"That girl got ripped off," said juror Barbara Patsches, who voted to acquit Lemons in September. "That video shows it. It really ticked me off. The policeman was being nitpicky. This could happen to anybody."

She said the video so convinced her and other jurors that Lemons was not impaired, arguments that the Breathalyzer was inaccurate seemed more convincing.

"I thought it had to be wrong," Patsches said.

Neither the Sheriff's Office nor the State Attorney's Office would comment about Lemons' case.

"How many times are they going to roll the dice and hope for a conviction?" Lemons asked. "It's not fair. You can see me on the tape. I wasn't drunk or impaired."

Assistant State Attorney Richard Mensh, while declining to comment, did say a decision to go to a third trial is "based on the merits of the case, not on how many hung juries you have."

When Lemons is retried, the videotape will again play a key role.

A viewing of the video shows that Lemons' van does veer slightly over the white line at the side of U.S. 19 as it traveled south through Port Richey about 1:30 a.m. Lemons also was going about 10 mph over the speed limit.

After being stopped, Lemons speaks clearly without slurring her speech. She exits her vehicle easily. She does not stumble as she walks.

Even so, she does not perform perfectly in three sobriety tests.

Lemons could not hold her balance at one point during the one-legged stand. In the heel-to-toe walk, her heel and toe do not meet exactly as she walks a straight line.

In a test in which she is asked to touch her nose, she does not follow instructions closely, failing to keep her head tilted back properly.

Lemons' former attorney, Bob Johnson, argued at trial that the officer who stopped Lemons, Deputy Travis Gardner, was too critical of his client's performance on the field sobriety tests.

Johnson said Lemons was nervous and wearing boots that hurt her feet. When she removed her boots, temperatures that dipped into the 40s that night also affected her, he said.

"Many people couldn't pass that test dead sober," he said. "They ask people to perform an abnormal set of tests to determine their normal faculties."

At trial, Johnson asked Gardner, "Would you agree with the statement, "Nobody's perfect?' "

"Yes."

When it was noted that Gardner mispronounced a word in his testimony, the deputy said he was a little nervous.

"Would it be fair to say that most humans when they're more nervous they make more mistakes?" Johnson asked.

"I would say."

Of the sobriety tests, Gardner said, "There's no accommodation for nervousness."

The state attorney's office hinged its case on the fact that Lemons' blood-alcohol level exceeded the legal limit. Assistant State Attorney Todd Bennett told jurors the Breathalyzer's accuracy was unquestioned.

"It's like a highly tuned scale," he said.

Jurors were apparently bothered by details of the stop itself.

For instance, Gardner testified, when he stopped Lemons, she failed to pull her van into a parking space when she drove into a parking lot.

"For heaven's sake, the parking lot was empty. It was 1:30 in the morning," Patsches said.

At another point, Lemons was deemed impaired because she touched her nose with the pad of her finger rather than the tip.

"I tried to do some of these sobriety tests in the jury room," Patsches said. "I tried to walk a line heel-to-toe and I couldn't do it."

Lemons said she has virtually bankrupted herself fighting the charge, spending $6,500. She also has taken a second mortgage on her house.

Lemons, who said she works for a temporary-employment agency doing construction work, is now represented by the public defender's office because she said she no longer can afford a private attorney.

Johnson, her former attorney, said many other jurisdictions simply would have dropped or reduced the charge after facing two hung juries.

"Obviously, there is enough reasonable doubt in their case to have convinced 10 of 12 jurors that she is innocent," Johnson said.

"She isn't Ted Bundy. She has no priors. There is no victim. There was no accident. Frankly, I don't understand it."

Take your own test

These are the field sobriety tests that a deputy used to see if Susan Lemons was impaired. Lemons' attorney argued at trial that many people would fail to perform these tests perfectly even if sober. Give them a try.

+ Place your right foot in front of your left foot with your heel and toe touching. With your hands by your sides, take nine steps in a straight line, each time touching your toe to your heel. Keep your eyes on your feet and count your steps out loud. At the end of nine steps, turn and take nine steps back.

+ Put your feet together and hands by your side. Then raise one foot _ whichever you prefer _ about 6 inches above the ground and point it forward. Keeping your eyes on your foot, start counting out loud. Do not use your arms for balance. Continue for 30 seconds.

+ Stand with your head tilted back, your feet together, your arms at your sides and your eyes closed. Now extend your arm out in front of you and touch the tip of your finger to the tip of your nose.

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